4th Circuit says towering cross-shaped monument on public land is unconstitutional

A federal appeals court has ruled that a 40-foot-tall cross at a busy intersection in Prince George's County is an unconstitutional violation of the First Amendment that prohibits the government from favoring a certain religion.

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PUBLISHEDUNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

No. 15-2597

AMERICAN HUMANIST ASSOCIATION;EDWORDS; BISHOP MCNEILL,

STEVEN

LOWE;

FRED

Plaintiffs a Appellants,v.MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,Defendant a Appellee,THE AMERICAN LEGION; THE AMERICAN LEGION DEPARTMENT OFMARYLAND; THE AMERICAN LEGION COLMAR MANOR POST 131,Intervenors/Defendants a Appellees,--------------------------------FREEDOM FROM RELIGION FOUNDATION; CENTER FOR INQUIRY,Amici Supporting Appellant,THE BECKETT FUND FOR RELIGIOUS LIBERTY; JOE MANCHIN; DOUGCOLLINS; VICKY HARTZLER; JODY HICE; EVAN JENKINS; JIM JORDAN;MARK MEADOWS; ALEX MOONEY; STATE OF WEST VIRGINIA; STATEOF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OFFLORIDA; STATE OF GEORGIA; STATE OF HAWAII; STATE OF IDAHO;STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATEOF LOUISIANA; STATE OF MICHIGAN; STATE OF MONTANA; STATE OFNEVADA; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OFOKLAHOMA; STATE OF RHODE ISLAND; STATE OF SOUTH CAROLINA;STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATEOF VIRGINIA; STATE OF WISCONSIN,

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Amici Supporting Appellee.

Appeal from the United States District Court of Maryland, at Greenbelt. Deborah K.Chasanow, Senior District Judge. (8:14-cv-00550-DKC)

ARGUED: December 7, 2016

Decided: October 18, 2017

Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, whichJudge Wynn joined. Chief Judge Gregory wrote an opinion concurring in part anddissenting in part.

Marshall, Attorney General of Alabama, Montgomery, Alabama, for Amicus State ofAlabama; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona, for AmicusState of Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas,for Amicus State of Arkansas; Pamela Jo Bondi, Attorney General of Florida,Tallahassee, Florida, for Amicus State of Florida; Christopher M. Carr, Attorney Generalof Georgia, Atlanta, Georgia, for Amicus State of Georgia; Douglas S. Chin, AttorneyGeneral of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lawrence G. Wasden,Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Curtis Hill, AttorneyGeneral of Indiana, Indianapolis, Indiana, for Amicus State of Indiana; Derek Schmidt,Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; AndyBeshear, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus State ofKentucky; Jeff Landry, Attorney General of Louisiana, Baton Rouge, Louisiana, forAmicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing,Michigan, for Amicus State of Michigan; Timothy C. Fox, Attorney General of Montana,Helena, Montana, for Amicus State of Montana; Adam Paul Laxalt, Attorney General ofNevada, Carson City, Nevada, for Amicus State of Nevada; Wayne Stenehjem, AttorneyGeneral of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota;Michael DeWine, Attorney General of Ohio, Columbus, Ohio, for Amicus State of Ohio;E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma, for AmicusState of Oklahoma; Peter F. Kilmartin, Attorney General of Rhode Island, Providence,Rhode Island, for Amicus State of Rhode Island; Alan Wilson, Attorney General of SouthCarolina, Columbia, South Carolina, for Amicus State of South Carolina; Marty J.Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State ofSouth Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas, for Amicus Stateof Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah, for AmicusState of Utah; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia, forAmicus Commonwealth of Virginia; Brad D. Schimel, Attorney General of Wisconsin,Madison, Wisconsin, for Amicus State of Wisconsin.

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THACKER, Circuit Judge:In this case we are called upon to decide whether the Establishment Clause isviolated when a local government displays and maintains on public property a 40-foot tallLatin cross, established in memory of soldiers who died in World War I. The districtcourt determined that such government action does not run afoul of the EstablishmentClause because the cross has a secular purpose, it neither advances nor inhibits religion,and it does not have the primary effect of endorsing religion.We disagree. The monument here has the primary effect of endorsing religion andexcessively entangles the government in religion. The Latin cross is the core symbol ofChristianity. And here, it is 40 feet tall; prominently displayed in the center of one of thebusiest intersections in Prince Georgeas County, Maryland; and maintained withthousands of dollars in government funds. Therefore, we hold that the purported warmemorial breaches the awall of separation between Church and State.a Everson v. Bd. ofEduc., 330 U.S. 1, 16 (1947) (internal quotation marks omitted).

Accordingly, we

reverse and remand.I.A.In 1918, some Prince Georgeas County citizens started raising money to constructa giant cross, in addition to a previously established plaque, to honor 49 World War Isoldiers from the county. The private organizers required each donor to sign a pledgesheet recognizing the existence of one god. It stated:

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WE, THE CITIZENS OF MARYLAND, TRUSTING INGOD, THE SUPREME RULER OF THE UNIVERSE,PLEDGE FAITH IN OUR BROTHERS WHO GAVETHEIR ALL IN THE WORLD WAR TO MAKE THEWORLD SAFE FOR DEMOCRACY. THEIR MORTALBODIES HAVE TURNED TO DUST, BUT THEIR SPIRITLIVES TO GUIDE US THROUGH LIFE IN THE WAY OFGODLINESS, JUSTICE, AND LIBERTY.WITH OUR MOTTO, aONE GOD, ONE COUNTRY ANDONE FLAG,a WE CONTRIBUTE TO THIS MEMORIALCROSS COMMEMORATING THE MEMORY OF THOSEWHO HAVE NOT DIED IN VAIN.J.A. 1168 (emphasis supplied). 1 Local media described the proposed monument as aamammoth cross, a likeness of the Cross of Calvary, as described in the Bible.a 2 Id. at1115. The private organizers held a groundbreaking ceremony on September 28, 1919, atwhich time the city of Bladensburg owned the land.In 1922, the private organizers ran out of money and could not finish the project.So, the Snyder-Farmer Post of the American Legion (the aPosta) assumed responsibility.At its initial fundraising drive, the Post had a Christian prayer-led invocation. Later thatsame year, on Memorial Day, the Post held memorial services around the unfinishedmonument, at which a Christian chaplain led prayer, and those in attendance sang theChristian hymn aNearer My God to Thee.a J.A. 2096. The Post ultimately completed

1

Citations to the aJ.A.a or aSupp. J.A.a refer to the Joint Appendix andSupplemental Joint Appendix, respectively, filed by the parties in this appeal.2

aCalvarya refers to the aproper name of the place where [Jesus] Christ wascrucified.a J.A. 289.

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the monument in 1925 and had Christian prayer services at the dedication ceremony,during which only Christian chaplains took part. No other religions were represented.Upon completion, the monument at issue stood four stories tall in the shape of aLatin cross located in the median of a three-way highway intersection in Bladensburg,Maryland (the aCrossa). Over the years, memorial services continued to occur on aregular basis at the Cross, and those services often included prayer at invocations andbenedictions, and speaker-led prayers. Sunday worship services have at times been heldat the Cross. Nothing in the record indicates that any of these services represented anyfaith other than Christianity.On March 1, 1961, Appellee Maryland-National Capital Park and PlanningCommission (the aCommissiona), a state entity, obtained title to the Cross and the landon which it sits. According to the Commission, it acquired the Cross and land in partbecause of safety concerns arising from the placement of the Cross in the middle of abusy traffic median. Therefore, the Commission purports that it assumed responsibilityto amaintain[], repair[], and otherwise car[e] fora the Cross. J.A. 2529. The Commissionhas since spent approximately $117,000 to maintain and repair the Cross, and in 2008, itset aside an additional $100,000 for renovations.B.Today, the 40-foot tall Cross is situated on a traffic island taking up one-third ofan acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg.The American Legionas symbol -- a small star inscribed with aU.S.a -- is affixed near thetop of the Cross, and an American flag flies in the vicinity of the Cross. The Cross sits6

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on a rectangular base, with each side inscribed with one of four words: avalor,aaendurance,a acourage,a and adevotion.a

J.A. 1963 (capitalization omitted).

Additionally, one side of the base contains a two-foot tall, nine-foot wide plaque listingthe names of the 49 soldiers from Prince Georgeas County whom the Cross memorializes,followed by a quote by President Woodrow Wilson. 3 However, the plaque is located ononly one side of the base, which bushes have historically obscured. 4 Moreover, theplaque is badly weathered, rendering it largely illegible to passing motorists.The Cross is part of a memorial park honoring veterans in Bladensburg (theaVeterans Memorial Parka).

A small sign titled aStar-Spangled Banner National

Historical Traila is located on a walking path approximately 600 feet north of the Cross.This small sign -- which, like the plaque at the base of the Cross, is not readily visiblefrom the highway -- serves as the only formal marker identifying the area as a memorialpark by stating, aThis crossroads has become a place for communities to commemoratetheir residents in service and in death.a

J.A. 1870.

The other monuments in the

memorial park area include a War of 1812 memorial, a World War II memorial, a Koreanand Vietnam veterans memorial, and a September 11th memorial walkway.

These

surrounding monuments are each located at least 200 feet away from the Cross, with the3

aThe right is more precious than peace. We shall fight for the things we havealways carried nearest our hearts. To such a task we dedicate our lives.a J.A. 1891.4

War of 1812 memorial located one-half mile away. No other monument in the area istaller than ten feet, and there are no other religious symbols in the park.Beyond the above description of the Cross and its placement in the park, variousphotographs from the record depicting the Cross are attached to this opinion. See J.A. 34(image of the Cross before this case was filed), 1098 (closer image of the Cross), 1891(image of the weathered plaque at the base of the Cross); Supp. J.A. 2 (overhead image ofthe Veterans Memorial Park).II.Appellants Steven Lowe, Fred Edwords, and Bishop McNeill are non-Christianresidents of Prince Georgeas County who have faced multiple instances of unwelcomecontact with the Cross. Specifically, as residents they have each regularly encounteredthe Cross while driving in the area, believe the display of the Cross amounts togovernmental affiliation with Christianity, are offended by the prominent governmentdisplay of the Cross, and wish to have no further contact with it. Per their complaint,they believe aa more fitting symbol of [veteransa] sacrifice would be a symbol of theNation for which they fought and died, not a particular religion.a J.A. 25. AppellantAmerican Humanist Association (aAHAa) is a nonprofit organization that advocates touphold the founding principle of separation of church and state. AHA is suing on behalfof its members. 5

5

Where appropriate, Appellants AHA, Lowe, Edwords, and McNeill arecollectively referred to as aAppellants.a

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As noted, Appellee Commission, a state entity, owns and maintains the Cross andthe traffic island on which it stands. Appellees-Intervenors are the American Legion, theAmerican Legion Department of Maryland, and the American Legion Colmar ManorPost 131 (collectively, athe Legiona). 6 The Legion is a private organization focused onaAmericanisma and the armed forces. J.A. 1469.Appellants sued the Commission under 42 U.S.C. ASS 1983, alleging theCommissionas display and maintenance of the Cross violates the Establishment Clause.Appellants seek a declaratory judgment that this conduct violates the EstablishmentClause and Appellantsa constitutional rights, an injunction enjoining the Commissionfrom displaying the Cross on public property, 7 nominal damages, and attorneyas fees andcosts.Appellants and Appellees filed cross-motions for summary judgment, and thedistrict court granted summary judgment to Appellees. In doing so, the district courtanalyzed Appellantsa claim pursuant to Lemon v. Kurtzman, 403 U.S. 602 (1971). It heldthe Commission owned the Cross and land for a legitimate secular reason, that is, to

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Where appropriate, the Commission and Legion are collectively referred to asaAppellees.a7

Appellants later clarified their desired injunctive relief as removal or demolitionof the Cross, or removal of the arms from the Cross ato form a non-religious slab orobelisk.a J.A. 131.

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maintain the highway median. The district court also identified a second secular purpose,which is to commemorate the 49 World War I soldiers from Prince Georgeas County. 8The district court next determined that the Cross neither advanced nor inhibitedreligion because (1) the Cross has been primarily used for veteransa events; (2) crossesare generally regarded as commemorative symbols for World War I, at least overseas; (3)secular war memorials surround the Cross; and (4) the Cross has secular attributes, suchas the Legion symbol on the face of the Cross. Finally, the district court concluded theCommissionas display and maintenance of the Cross did not amount to excessiveentanglement with religion because the Cross was not a governmental endorsement ofreligion. At bottom, the district court viewed the Commissionas maintenance of theCross as relating to traffic safety and veteran commemoration rather than religion.Appellants timely appealed.III.We review de novo a district courtas grant of summary judgment. See Elderberryof Weber City, LLC v. Living Centers-Se., Inc., 794 F.3d 406, 411 (4th Cir. 2015). aIndoing so, we apply the same legal standards as the district court, and view all facts in thelight most favorable to the nonmoving party.a Certain Underwriters at Lloydas, Londonv. Cohen, 785 F.3d 886, 889 (4th Cir. 2015) (alterations and internal quotation marksomitted).

IV.Appellants contend that the Cross is a war memorial that favors Christians to theexclusion of all other religions. In response, Appellees frame Appellantsa claim aspromoting a strict rule that crosses on government property are per se unconstitutional,which they assert threatens memorials across the Nation.A.As an initial matter, Appellees question whether Appellants have standing to bringthis claim. They argue that Appellants have not aforgone any legal rights,a such as atheright to drive on the public highways running through [the] Veterans Memorial Parka atoavoid contact with the memorial.a Appelleesa Br. 46 n.12. Appelleesa standing argumentlacks merit.An Establishment Clause claim is justiciable even when plaintiffs claimnoneconomic or intangible injury. See Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4thCir. 1997); see also Intal Refugee Assistance Project v. Trump, 857 F.3d 554, 582 (4thCir.), cert. granted, 137 S. Ct. 2080 (2017). Specifically, in religious display cases,aunwelcome direct contact with a religious display that appears to be endorsed by thestatea is a sufficient injury to satisfy the standing inquiry. Suhre, 131 F.3d at 1086.The non-AHA Appellants have standing because they allege specific unwelcomedirect contact with the Cross; that is, they have each regularly encountered the Cross asresidents while driving in the area, the Commission caused such injury by displaying theCross, and the relief sought -- enjoining the display of the Cross -- would redress theirinjury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560a61 (1992); see also ACLU v.11

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Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1108 (11th Cir. 1983)(determining one plaintiff had standing because a Latin cross was clearly visible fromathe porch of his summer cabina and from the roadway he used to reach the cabin). TheAHA also has standing. An association has standing to sue on behalf of its members ifthey would have standing to sue on their own, the association seeks to protect interestsgermane to its purpose, and neither the claim asserted nor the relief requested requires itsindividual members to participate in the lawsuit. See Hunt v. Wash. State Apple Advert.Comman, 432 U.S. 333, 343 (1977); ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d424, 429 (6th Cir. 2011). Here, the AHA has members in Prince Georgeas County whohave faced unwelcome contact with the Cross. These interests are germane to the AHAaspurpose of maintaining the separation of church and state, and the claim and relief soughtdo not require individual participation. Appellants thus have standing to sue, and so weturn to the merits of this case.B.The Establishment Clause provides, aCongress shall make no law respecting anestablishment of religion . . . .a U.S. Const. amend. I. This clause thus guaranteesreligious liberty and equality to people of all faiths. See Cty. of Allegheny v. ACLU, 492U.S. 573, 590 (1989), abrogated on other grounds, Town of Greece v. Galloway, 134 S.Ct. 1811 (2014).We have generally analyzed Establishment Clause issues pursuant to Lemon v.Kurtzman, 403 U.S. 602 (1971). See Buxton v. Kurtinitis, 862 F.3d 423, 432 (4th Cir.2017); Lambeth v. Bd. of Commars of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005);12

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Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003). Per Lemon, to comply with theEstablishment Clause, a challenged government display must (1) have a secular purpose;(2) not have a aprincipal or primary effecta that advances, inhibits, or endorses religion;and (3) not foster aan excessive entanglement between government and religion.aLambeth, 407 F.3d at 269a73 (internal quotation marks omitted); see Lemon, 403 U.S. at612a13. aIf a state action violates even one of these three prongs, that state action isunconstitutional.a Koenick v. Felton, 190 F.3d 259, 265 (4th Cir. 1999) (citing N.C. CivilLiberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1147 (4th Cir. 1991)); seealso Buxton, 862 F.3d at 432.However, Appellees dispute Lemonas application here, arguing that, instead, theSupreme Courtas holding in Van Orden v. Perry, 545 U.S. 677 (2005), controls. In VanOrden, the Court addressed whether a monument displaying the Ten Commandments ongovernment property violated the Establishment Clause. See 545 U.S. at 681. Themonument, located between the Texas Capitol and the Texas Supreme Court building,also displayed an eagle grasping the American flag, two Stars of David, Greek lettersrepresenting Christ, and an inscription indicating that a private organization donated themonument. See id. at 681a82. The monument stood six-feet high and three-and-a-halffeet wide, and sat among a17 monuments and 21 historical markers commemorating thepeople, ideals, and events that compose Texan identity,a id. at 681 (internal quotationmarks omitted), such as monuments of the Heroes of the Alamo, the Texas NationalGuard, and the Texas Peace Officers, see id. at 681 n.1.

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A plurality of the Court first decided the Lemon test is anot usefula in theapassivea monument context. Van Orden, 545 U.S. at 686. Rather, it examined the roleand historical meanings of God and the Ten Commandments in our Nationas history. Seeid. at 686a91. The plurality first noted President George Washingtonas ThanksgivingDay Proclamation of 1789, which adirectly attributed to the Supreme Being thefoundations and successes of our young Nation,a as an example of the aunbroken historyof official acknowledgment by all three branches of government of the role of religion inAmerican life from at least 1789.a Id. at 686a87 (quoting Lynch v. Donnelly, 465 U.S.668, 674 (1984)). It also recognized athe role of God in our Nationas heritage,a pointingto other Ten Commandment displays in federal buildings, including the Supreme Courtasown courtroom and the Library of Congress, which reinforced the secular connectionbetween our Nation and the Ten Commandments. See id. at 687a89. Though the TenCommandments have religious significance, the plurality noted that the TenCommandments were given to Moses, who awas a lawgiver as well as a religious leader.aId. at 690. Finally, the plurality viewed the placement of the monument on the TexasState Capitol grounds as afar more passivea when compared to other display cases,especially because the petitioner in Van Orden awalked by the monument for a number ofyearsa before suing. Id. at 691. Taking all of these considerations as a whole, theplurality concluded that the display in Van Orden did not violate the EstablishmentClause.Justice Breyeras concurrence, however, is controlling because it is the narrowestground upholding the majority. See Marks v. United States, 430 U.S. 188, 193 (1977);14

and (3) the Cross has stood unchallenged for 90 years. Appelleesa Br. 21. But evenunder Lemon, Appellees contend that they prevail, particularly because the Crossasacontent, setting, and history make clear to a reasonable objective observer that itsprimary effect is commemoration, not religious endorsement.a Id. at 22. Therefore,Appellees argue that they prevail regardless of whether Van Orden or Lemon applies.In support of their argument to the contrary, Appellants primarily rely on Lemonassecond prong -- that is, the aeffect of advancing religion.a Appellants highlight the Latincrossas inherent religious message, the history of religious activity involving the Cross,the Crossas size and prominence, and its limited secular features. Appellants alternativelyassert that the Cross is unconstitutional under Van Orden because the Latin cross lacksany connection to our Nationas history, and the Crossas physical setting undermines theEstablishment Clause.As explained above, we analyze this case pursuant to the three-prong test inLemon with due consideration given to the factors outlined in Van Orden, mindful that aviolation of even one prong of Lemon results in a violation of the Establishment Clause.1.Secular PurposeDemonstrating a legitimate secular purpose is aa fairly low hurdle.a Brown v.Gilmore, 258 F.3d 265, 276 (4th Cir. 2001) (internal quotation marks omitted).Moreover, government action having adual legitimate purposesa -- one secular and onesectarian -- acannot run afoul of the first Lemon prong.a Id. at 277.

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The Commission has articulated legitimate secular purposes for displaying andmaintaining the Cross that satisfy the first prong of Lemon. See Lynch, 465 U.S. at 680a81. The Commission obtained the Cross for a secular reason -- maintenance of safetynear a busy highway intersection. The Commission also preserves the memorial to honorWorld War I soldiers. Government preservation of a significant war memorial is alegitimate secular purpose. See Trunk v. City of San Diego, 629 F.3d 1099, 1108 (9thCir. 2011). Thus, the Commission has satisfied the first prong of Lemon.2.EffectThe second prong of Lemon requires this court to ask awhether a particulardisplay, with religious content, would cause a reasonable observer to fairly understand itin its particular setting as impermissibly advancing or endorsing religion.a Lambeth, 407F.3d at 271. A areasonable observer in the endorsement inquiry must be deemed awareof the history and context of the community and forum in which the religious speechtakes place.a Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001) (alterationsomitted) (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779a80 (1995) (OaConnor, J., concurring)). aPut differently, the effect prong asks whether,irrespective of governmentas actual purpose, the practice under review in fact conveys amessage of endorsement or disapproval of religion.a Mellen, 327 F.3d at 374 (alterationsand internal quotation marks omitted). This second prong therefore requires a detailedfactual analysis of the Cross, including its meaning, history, and secularizing elements,

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and, where relevant, we consider the appropriate factors under Van Orden. See Trunk,629 F.3d at 1110.a.Meaning of the Latin CrossThe Latin cross is the apreeminent symbol of Christianity.a Buono v. Norton, 371F.3d 543, 545 (9th Cir. 2004) (internal quotation marks omitted); see Robinson v. City ofEdmond, 68 F.3d 1226, 1232 (10th Cir. 1995); Gonzales v. N. Twp. of Lake Cty., 4 F.3d1412, 1418 (7th Cir. 1993); Murray v. City of Austin, 947 F.2d 147, 149 (5th Cir. 1991);ACLU v. Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir. 1983).Indeed, the Latin cross is aexclusively a Christian symbol, and not a symbol of any otherreligion.a Trunk, 629 F.3d at 1111 (internal quotation marks omitted); see Buono, 371F.3d at 545; Gonzales, 4 F.3d at 1418 (a[W]e are masters of the obvious, and we knowthat the crucifix is a Christian symbol.a). Notwithstanding the Latin crossas inherentreligious meaning, the district court concluded that it is also a symbol of World War I,particularly overseas. Specifically, the district court concluded that the Cross at issuehere evokes the image of white crosses on foreign battle fields. For this proposition, itcites the Legionas expert witness report, which states that athe symbolism of the cross isthat of individual loss of life, not of the Resurrection [of Jesus Christ].a J.A. 1898.While the Latin cross may generally serve as a symbol of death andmemorialization, it only holds value as a symbol of death and resurrection because of itsaffiliation with the crucifixion of Jesus Christ. See Carpenter v. City and Cty. of SanFrancisco, 93 F.3d 627, 630 (9th Cir. 1996) (aThe Latin cross is the preeminent symbol18

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of many Christian religions and represents with relative clarity and simplicity theChristian message of the crucifixion and resurrection of Jesus Christ, a doctrine at theheart of Christianitya (internal quotation marks omitted)); ACLU v. City of St. Charles,794 F.2d 265, 273 (7th Cir. 1986) (aIt is the principal symbol of the Christian religion,recalling the crucifixion of Jesus Christ and the redeeming benefits of his passion anddeatha (internal quotation marks omitted)). One simply cannot ignore the fact that forthousands of years the Latin cross has represented Christianity. Even in the memorialcontext, a Latin cross serves not simply as a generic symbol of death, but rather aChristian symbol of the death of Jesus Christ. 9 Further, even if other countries mayidentify the Latin cross as a commemorative symbol of World War I, thatacknowledgment does not dictate our analysis. Indeed, crosses used on World War Ibattlefields were individual -- rather than universal -- memorials to the lives of Christiansoldiers. 10

And this Nation, unlike others, maintains a clearly defined wall between

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The argument could be made that to hold that the Latin cross symbolizesanything other than Christianity may be deemed offensive to Christians. The Latin crossareminds Christians of Christas sacrifice for His people,a and ait is unequivocally asymbol of the Christian faith.a Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1022(10th Cir. 2008).10

The poppy has actually been known as a universal symbol for commemoratingWorld War I. See Trunk, 629 F.3d at 1113; Eang L. Ngov, Selling Land and Religion, 61U. Kan. L. Rev. 1, 28 (2012) (aThe poppy, as depicted in the famous poem In FlandersFields, not the cross, became the universal symbol in the United States and abroad for theforeign warsa (footnotes omitted)); The Cambridge Encyclopedia 877 (6th ed. 2006)(aRed poppies, which grew wild in the fields of Flanders, are used in November as asymbol of remembrance of those who died in the two World Warsa); see generally H.R.Rep. No. 80-2071 (discussing the use of the poppy to memorialize World War I andreporting favorably on commemorative stamps depicting the poppy); Ryan Valentin, Milk(Continued)19

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church and state that amust be kept high and impregnable.a Everson v. Bd. of Educ., 330U.S. 1, 18 (1947). Thus, the manner in which other countries view the Latin cross is ofno moment.Further, a Latin cross differs from other religious monuments, such as the TenCommandments or the motto aIn God We Trust.a Those symbols are well known asbeing tied to our Nationas history and government, and courts have thus upheld theirpublic display. See, e.g., Van Orden, 545 U.S. at 688 (noting the secular role of the TenCommandments in American history); Lambeth, 407 F.3d at 271a72 (acknowledging theties between American history and the motto aIn God We Trusta). Appellees have notsufficiently demonstrated that the Latin cross has a similar connection.b.History of the CrossThough the history of the Latin cross favors Appellants, the history of theparticular Cross before us does not clearly support one party over the other. On the onehand, the initial donors to the memorial fund signed a pledge professing a belief in God,and the Cross has been the scene of Christian activities, such as Sunday worship servicesand group prayer at invocations and benedictions.

On the other hand, private

organizations raised money to erect the Cross, it has a scattered history of religious use,

and Other Intoxicating Choices: Official State Symbol Adoption, 41 N. Ky. L. Rev. 1, 5a6 (2014); Jennifer Iles, In Remembrance: The Flanders Poppy, 13 Mortality 201 (2008)(discussing the history of the poppy and its status as a symbol of remembrance).

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and it has primarily hosted veteran-focused ceremonies. Thus, when viewed through thelens of not only Lemon, but also of Van Orden, the circumstances surrounding theCrossas placement admittedly point to a semisecular history. See Van Orden, 545 U.S. at701.It is also true that the Cross has stood unchallenged for 90 years, which Appelleesargue reinforces its secular effect. See Van Orden, 545 U.S. at 702. But that argument istoo simplistic. In this case, it cannot be said that athe longer the violation, the lessviolative it becomes.a Gonzales, 4 F.3d at 1422 (rejecting the argument that nearly 40years without challenging a crucifix reinforced its secular effect). 11 Perhaps the longer aviolation persists, the greater the affront to those offended. The Crossas history thereforedoes not definitively aid either side in the analysis.

11

Of note, a person who dared bring a challenge to the Cross for much of those 90years would have faced possible rebuke. For example, atheists were forbidden fromholding public office until the Supreme Courtas intervention in the 1960as. In 1959, theGovernor of Maryland appointed Roy Torcaso as a Notary Public, but the Secretary ofState of Maryland refused to issue the commission because Torcaso, an atheist, would notdeclare a belief in the existence of god. See Appellantas Br. 4; Torcaso v. Watkins, 367U.S. 488 (1961). The Maryland Constitution provides, aNo religious test ought to berequired as a qualification for any office of profit or trust in this state other than adeclaration of belief in the existence of God.a The Supreme Court deemed the clauseunconstitutional declaring that Maryland had aset[] up a religious test which wasdesigned to and, if valid, does bar every person who refuses to declare a belief in Godfrom a public office of profit or trust in Maryland.a Torcaso, 367 U.S. at 489 (internalquotation marks omitted). More than 50 years later, the constitution still contains theoffending provision. See Md. Const. Decl. of Rts. art. 37.

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c.Secular ElementsAdmittedly, the Cross contains a few secular elements. As support for theirposition, Appellees point to the plaque at the base of the Cross that contains the names ofthe 49 soldiers from Prince Georgeas County whose lives were lost in World War I; theLegion symbol; the words avalor,a aendurance,a acourage,a and adevotiona inscribed onits base; an American flag flying in its vicinity; and its location in the Veterans MemorialPark.

Appellees maintain that the plaque and symbols diminish any government

endorsement of religion.But the sectarian elements easily overwhelm the secular ones. The Cross is by farthe most prominent monument in the area, conspicuously displayed at a busy intersection,standing four stories tall, and overshadowing the other monuments, the tallest of which isonly ten feet tall and located approximately 200 feet from the Cross.

The other

monuments composing the Veterans Memorial Park are anywhere from 200 feet away toa half-mile away. The immense size and prominence of the Cross necessarily aevokes amessage of aggrandizement and universalization of religion, and not the message ofindividual memorialization and remembrance that is presented by a field of gravestones.aTrunk, 629 F.3d at 1116 n.18 (citation omitted).

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In addition, the Cross is not located in an area where one could easily park, walkto the Cross, and examine the plaque. 12 Rather, the Cross is located in a high-traffic area,and passers-by would likely be unable to read the plaque, particularly given its locationon only one side of the Cross, 13 and the fact that both the plaque and the AmericanLegion symbol are badly weathered, not to mention that the American Legion symbol issmall in comparison to the overall size of the Cross. We also cannot ignore the AmericanLegionas affiliation with Christianity, as gleaned from its prayer manuals and the aFourPillars of the American Legion.a J.A. 1469. 14 And, when we consider the physicalsetting of the Cross pursuant to Van Orden, Appelleesa arguments are equally unavailing.See 545 U.S. at 702.

The Crossas location on public property at a busy traffic

intersection, the small size and scattered locations of the surrounding monuments, plus12

Although there may be parking available in the vicinity of the Cross, as well as awalkway to the Cross, realistically, the general public may not easily or readily access theCross. In fact, Appellees admitted at oral argument that pedestrians attending ceremoniesheld at the Cross accessed the site primarily with help from police officers guidingpedestrians through the intersection and highway. See Oral Argument at 25:00a26:30,Am. Humanist Assoc. v. Maryland-Natal Capital Park & Planning Comman, No. 15-2597,http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (Dec. 7, 2016).And, after all, the primary reason the Commission took over the maintenance of the Crosswas for safety reasons, given its location in the middle of a busy highway intersection.13

The plaqueas location on one side of the Cross makes it visible, if at all, only tothose traveling on a small portion of the busy highway. See J.A. 1891 (photograph of theweathered plaque); see also Appendix (attached).14

For example, to the exclusion of other religions, each Legion chapter has achaplain, and the Legion has a Christian prayer manual that is used at meetings,invocations, and benedictions. Further, pursuant to the aFour Pillars of the AmericanLegion,a the Legion opposes attacks on apatriotica values. J.A. 1469. Such attacksinclude prayer being aremoved from schools,a a[r]eferences to God [being] challenged,aand attacks on the ainstitution of marriage.a Id. at 1469a70.

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the fact that bushes have obscured the plaque for much of its history, see, e.g., J.A. 34(photograph of the Cross before this case was filed), all point to a violative display. SeeAm. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1121 (10th Cir. 2010) (aThe fact that the[12-foot tall] cross includes biographical information about [a] fallen trooper does notdiminish the governmental message endorsing Christianity.

This is especially true

because a motorist driving by one of the memorial crosses at 55-plus miles per hour maynot notice, and certainly would not focus on, the biographical information.a).Thus, we conclude that the historical meaning and physical setting of the Crossovershadows its secular elements. Other courts presented with similar situations haveconcluded likewise. See, e.g., Trunk, 629 F.3d at 1123 (concluding a 43-foot Latin cross,though purporting to serve as a war memorial, overshadowed its secular aspects, whichincluded a plaque and 2,100 commemorative bricks); Gonzales, 4 F.3d at 1422a23(determining that an 18-foot wooden crucifix advanced religion, despite containing aplaque dedicating it to veterans, because the plaque was obscured); Smith, 895 F.2d at958 (concluding a crA"che 15 on government property violated the Establishment Clause inpart because a plaque stating its private sponsorship was arelatively small . . . in relationto the wholea display, thus amitigat[ing] [the plaqueas] valuea).According to the dissent, our analysis bases the unconstitutionality of the Crossapredominantly on the size of the cross,a without fairly weighing its aappearance,15

A crA"che is aa visual representation of the scene in the manger in Bethlehemshortly after the birth of Jesus, as described in the Gospels of Luke and Matthew.a Cty.of Allegheny, 492 U.S. at 580 (footnote omitted).

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context, and factual background.a Post at 42 (emphasis omitted). This is not accurate.Although we are of the opinion that the size of a religious display does matter, we havealso carefully considered the other factors required by Lemon and Van Orden. See PartIV.C.2.a (analyzing context and meaning); Part IV.C.2.b (factual background andhistory); Part IV.C.2.c (appearance). We are confident that we have fully complied withour aconstitutional directive.a Post at 42.d.Reasonable ObserverConsidering the factors above, we conclude that a reasonable observer wouldfairly understand the Cross to have the primary effect of endorsing religion. We do notdisagree with the dissentas characterization of the areasonable observera as someone whois not just an aordinary individuala but aaware of the history and context of thecommunity and forum in which the religious display appears.a Post at 43a44 (internalquotation marks omitted); see Lambeth, 407 F.3d at 271a72 (quoting Good News Club,533 U.S. at 119 (citation omitted)). In fact, Appellees at oral argument reaffirmed thatthe reasonable observer is aware of the entire context and history of the Cross, spanningfrom its origin to the present. See Oral Argument at 18:04a19:00, Am. Humanist Assoc.v.

Maryland-Natal

Capital

Park

&

Planning

Comman,

No.

15-2597,

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (Dec. 7, 2016).Accordingly, a reasonable observer would know that the Cross is dedicated to 49World War I veterans and that veteran services occur at the Cross.

But, more

importantly, a reasonable observer would also know that the private organizers pledged25

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devotion to faith in God, and that same observer knows that Christian-only religiousactivities have taken place at the Cross. No party has come forward with any evidence tothe contrary. Although the reasonable observer may recognize that the Cross is located inthe Veterans Memorial Park, such reasonable observer also could not help but note thatthe Cross is the most prominent monument in the Park and the only one displaying areligious symbol.

Further, the reasonable observer would know that a Latin cross

generally represents Christianity. These factors collectively weigh in favor of concludingthat the Cross endorses Christianity -- not only above all other faiths, but also to theirexclusion.The Commission and supporting amici equate the Cross to the crosses in ArlingtonNational Cemetery and similar locations. They raise concerns that siding with Appellantshere would jeopardize other memorials across the Nation displaying crosses, laying wasteto such memorials nationwide. Any such concern is misplaced. Establishment Clausecases are fact-specific, and our decision is confined to the unique facts at hand. SeeMcCreary Cty. v. ACLU, 545 U.S. 844, 867a68 (2005) (recognizing the relevant inquiryis based on the specific facts before the Court); Van Orden, 545 U.S. at 700(acknowledging the afact-intensivea nature of religious display cases); Card, 520 F.3d at1014; Staley, 485 F.3d at 309; OaConnor v. Washburn Univ., 416 F.3d 1216, 1222 (10thCir. 2005).

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In any event, Arlington National Cemetery is a designated area forcommemorating and memorializing veterans who have passed away. 16 The crosses thereare much smaller than the 40-foot tall monolith at issue here.

And, significantly,

Arlington National Cemetery displays diverse religious symbols, both as monuments andon individual headstones. 17 Contrast that with the Cross here. There are no otherreligious symbols present on the Cross or in the entirety of the Veterans Memorial Park.Christianity is singularly -- and overwhelmingly -- represented. Therefore, the secondprong of Lemon is violated.3.Excessive EntanglementWe turn now to the third prong of the Lemon test -- whether the governmentdisplay creates aan excessive entanglement between government and religion.a Lambeth,407 F.3d at 272a73 (internal quotation marks omitted). Excessive entanglement withreligion ais a question of kind and degree.a Lynch, 465 U.S. at 684. Such entanglementmay include apervasive monitoring or other maintenance by public authorities.aLambeth, 407 F.3d at 273 (citations omitted). Spending public funds, though a factor inthe analysis, is not necessary for a plaintiff to satisfy the entanglement prong. See

16

It must be made clear that we are not deciding or passing judgment on theconstitutionality of Arlington National Cemeteryas display of Latin crosses. Rather, weare merely distinguishing the facts at hand from those displayed at other places ofcommemoration.17

Images of such headstones are attached in the appendix.

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Constangy, 947 F.2d at 1152. Indeed, excessive entanglement may lie simply where thegovernmentas entanglement has the effect of advancing or inhibiting religion.

See

Agostini v. Felton, 521 U.S. 203, 232a33 (1997).We hold there is excessive religious entanglement in this case for two reasons.First, the Commission owns and maintains the Cross, which is displayed on governmentproperty. The Commission has spent at least $117,000 to maintain the Cross and has setaside an additional $100,000 for restoration. Other cases holding that displays violate theEstablishment Clause have involved de minimis government spending, if any.

See

Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (OaConnor, J., concurring) (a[A]ny use ofpublic funds to promote religious doctrines violates the Establishment Clause.a(emphasis omitted)). 18 Second, displaying the Cross, particularly given its size, history,and context, amounts to excessive entanglement because the Commission is displayingthe hallmark symbol of Christianity in a manner that dominates its surroundings and notonly overwhelms all other monuments at the park, but also excludes all other religioustenets. The display aggrandizes the Latin cross in a manner that says to any reasonableobserver that the Commission either places Christianity above other faiths, views beingAmerican and Christian as one in the same, or both. Therefore, the third prong of Lemonis also violated. We note, however, that because the Cross is unconstitutional under the18

The dissentas view to the contrary is only based on its differing views of theCross -- as a ahistorical monumenta rather than promotion of a religious doctrine in theform of a religious symbol. Post at 48. For the reasons explained supra, the Crossembodies promotion of a religious doctrine, Christianity, and therefore, JusticeOaConnoras statement is directly applicable.

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effect prong, the excessive entanglement prong here merely provides an alternativeindicator of the Crossas unconstitutionality.4.ConclusionThe Commissionas display of the Cross fails the second and third prongs ofLemon, and the Van Orden factors are unsupportive of Appelleesa position in this case.The display and maintenance of the Cross violates the Establishment Clause.V.For the foregoing reasons, the judgment of the district court isREVERSED AND REMANDED. 19

19

Upon remand, the parties should note that this opinion does not presuppose anyparticular result (i.e., removing the arms or razing the Cross entirely); rather, the partiesare free to explore alternative arrangements that would not offend the Constitution.

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APPENDIX

(J.A. 34) 20

20

A photograph of the Cross prior to the filing of this case.

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(J.A. 1098) 21

21

A photograph of the Cross from 2014 prior to the filing of this case.

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(J.A. 1891) 22

(Supp. J.A. 2) 23

22

A photograph of the weathered plaque located on the base of the Cross.

23

An overhead image of the Veterans Memorial Park. The Cross is locatedslightly to the left of center, titled aWWI Memorial.a

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As referenced in footnote 17, images of headstones in Arlington National Cemeteryadorned with diverse religious symbols, identified from top left to bottom right: SokaGakkai, Christianity, Buddhism, Wicca, Islam, Catholicism, United Church of Christ,Judaism, and Atheism. Arlington National Cemetery,https://pbs.twimg.com/media/CUa2t63VEAEoIfE.jpg.

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GREGORY, Chief Judge, concurring in part and dissenting in part:I agree with the majorityas holding that Appellants have standing under 42 U.S.C.ASS 1983 to bring this action for a violation of the Establishment Clause. But I disagreewith the majorityas ultimate conclusion that the display and maintenance of the warmemorial in this case violates the Establishment Clause. I therefore respectfully dissentin part.

I.The Establishment Clause provides that aCongress shall make no law respectingan establishment of religion.a U.S. Const. amend. I. To properly understand and applythe Establishment Clause, it must be viewed ain the light of its history and the evils it wasdesigned forever to suppress.a Everson v. Bd. of Educ., 330 U.S. 1, 14a15 (1947). Theearly colonization of America was a time marked with religious persecution.Immigrating settlers fled religious suppression in Europe only to be met with similartreatment in America. a[M]en and women of varied faiths who happened to be in aminority in a particular locality were persecuted because they steadfastly persisted inworshipping God only as their own consciences dictated.a Id. at 10. Those regarded asnonconformists were required ato support government-sponsored churches whoseministers preached inflammatory sermons designed to strengthen and consolidate theestablished faith by generating a burning hatred against dissenters.a Id.The Establishment Clause was intended to combat the practice of acompel[lingindividuals] to support and attend government favored churches.a Id. at 8; accord Myers34

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v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 402 (4th Cir. 2005). The Clauseas historicalsetting reveals that a[i]ts first and most immediate purpose rested on the belief that aunion of government and religion tends to destroy government and to degrade religion.aEngel v. Vitale, 370 U.S. 421, 431 (1962). The realization of its goal meant that thegovernment must aaneither engage in nor compel religious practices,a that it must aeffectno favoritism among sects or between religion and nonreligion,a and that it must aworkdeterrence of no religious belief.aa Van Orden v. Perry, 545 U.S. 677, 698 (2005)(Breyer, J., concurring) (plurality opinion) (quoting Abington School Dist. v. Schempp,374 U.S. 203, 305 (1963) (Goldberg, J., concurring)).But the Clause does not require the government ato purge from the public sphereaany reference to religion. Id. at 699. aSuch absolutism is not only inconsistent with ournational traditions, but would also tend to promote the kind of social conflict theEstablishment Clause seeks to avoid.a Id. (citations omitted). While neutrality may bethe atouchstonea of the Establishment Clause, it more so serves as a asense of directionathan a determinative test. McCreary Cty. v. Am. Civil Liberties Union, 454 U.S. 844(2005). We cannot view neutrality as some sort of abrooding and pervasive devotion tothe secular and a passive, or even active, hostility to the religious.a Schempp, 374 U.S. at306 (Goldberg, J., concurring). Thus, in reviewing the challenged war memorial, thisCourt must seek general rather than absolute neutrality. We do so by engaging in thethree-factor analysis delineated in Lemon v. Kurtzman (the aLemon testa), which requiresthat the memorial have a secular purpose; have a principal or primary effect that neitheradvances, inhibits, nor endorses religion; and not foster aan excessive government35

II.A.I will briefly reiterate the operative facts. In Bladensburg, Maryland, in a medianat the intersection of Maryland Route 450 and U.S. Route 1, stands a war memorialconsisting of a forty-foot-tall concrete Latin cross (the aMemoriala). The Memorial andthe median are currently owned by Appellee Maryland-National Capital Park andPlanning Commission (the aCommissiona).

Intervenor-Appellee American Legionas

symbol is displayed in the middle of the cross on both faces. The cross sits on a base andincludes a plaque that lists the names of the forty-nine Prince Georgeas County residentswho died in World War I. J.A. 1891. The plaque also states, aTHIS MEMORIALCROSS DEDICATED TO THE HEROES OF PRINCE GEORGEaS COUNTYMARYLAND WHO LOST THEIR LIVES IN THE GREAT WAR FOR THE LIBERTYOF THE WORLD,a and includes a quotation from President Woodrow Wilson. Id.Also, each face of the base is inscribed with one of four words:

aVALOR,a

aENDURANCE,a aCOURAGE,a and aDEVOTION.a J.A. 1963.In 1918, a group of private citizens led the charge to construct and finance theMemorial. The donors signed a pledge stating that they, atrusting in God, the Supreme36

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Ruler of the universe,a pledged their faith in the forty-nine war dead, whose spiritsguided them athrough life in the way of godliness, justice, and liberty.a J.A. 1168. Thegroup also circulated a fundraising flyer stating,Here, those who come to the Nationas Capital to view the wonders of itsarchitecture and the sacred places where their laws are made andadministered may, before this Cross, rededicate[] themselves to theprinciples of their fathers and renew the fires of patriotism and loyalty tothe nation which prompted these young men to rally to the defense of theright. And here the friends and loved ones of those who were in the greatconflict will pass daily over a highway memorializing their boys who madethe supreme sacrifice.J.A. 2303.A groundbreaking ceremony was held for the Memorial and for Maryland Route450 (then known as the National Defense Highway) in late 1919. Several local officialsspoke about the fallen soldiers and how both the Memorial and highway wouldcommemorate their bravery and sacrifice. But the private group ultimately failed to raiseenough money to construct the Memorial and abandoned the project. The local post ofthe American Legion, a congressionally chartered veterans service organization, thentook up the task and completed the Memorial on July 25, 1925. That day, the post held aceremony which included multiple speeches regarding the Memorialas representation ofthe men who died fighting for this country and an invocation and benediction deliveredby local clergymen.Over time, additional monuments honoring veterans were built near the Memorial(known as the aVeterans Memorial Parka). Because the Memorial sits in the middle of amedian and is separated by a busy highway intersection, the closest additional monument

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is about 200 feet away. Since the Memorialas completion, numerous events have beenhosted there to celebrate Memorial Day, Veterans Day, the Fourth of July, and theremembrance of September 11th. These ceremonies usually include an invocation andbenediction, but the record demonstrates that only three Sunday religious services wereheld at the Memorialaall of which occurred in August 1931. J.A. 347.Due to increasing traffic on the highway surrounding it, the Commission acquiredthe Memorial and the median where it is located from the American Legion in March1961. Since that time, the Commission has spent approximately $117,000 to maintainand repair the Memorial. In 2008, it set aside an additional $100,000 for renovations, ofwhich only $5,000 has been spent as of 2015. J.A. 562a65. On February 25, 2014, morethan fifty years after the Memorial passed into state ownership, Appellants initiated thissuit against the Commission under 42 U.S.C. ASS 1983 alleging a violation of theEstablishment Clause.B.By concluding that the Memorial violates the Establishment Clause, the majorityemployed the Lemon test awith due consideration given to the factors outlined in VanOrden.a Maj. Op. at 16. In Van Orden, a plurality of the Supreme Court determined thatthe Lemon test was not useful when evaluating a apassive monument.a 545 U.S. at 686.Instead, the Courtas analysis was adriven both by the nature of the monument and by ourNationas history.a Id. As the majority recognizes, Justice Breyeras concurrence is thecontrolling opinion in Van Orden. Maj. Op. at 14. Justice Breyer states that the CourtasEstablishment Clause tests, such as Lemon, cannot readily explain the Clauseas tolerance38

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of religious activities in aborderline cases,a as there is ano single mechanical formula thatcan accurately draw the constitutional line in every case.a Van Orden, 454 U.S. at 699a700 (Breyer, J., concurring). aIf the relation between government and religion is one ofseparation, but not of mutual hostility and suspicion, one will inevitably find difficultborderline cases.a

Id. at 700.

Instead of applying Lemon to the challenged Ten

Commandments display, Justice Breyer exercised his alegal judgmenta and evaluated thecontext of the display and how the undeniably religious text of the Commandments wasused. Id. at 700a04. His concurrence, however, also noted that Lemon provides a ausefulguidepost[]aand might well lead to the same resultaafor ano exact formula can dictatea resolution to such fact-intensive cases.a Id. at 700.Relying on Lemon, and drawing guidance from Van Orden, the majoritydetermined that the Commission articulated a legitimate secular purpose for displayingthe Memorial. Nevertheless, the majority concluded that the Memorial failed Lemonassecond and third factors, finding that a reasonable observer would conclude that theMemorial has the primary effect of endorsing religion and the Commissionasmaintenance of the Memorial constitutes excessive entanglement with religion. In myview, the majority misapplies Lemon and Van Orden to the extent that it subordinates theMemorialas secular history and elements while focusing on the obvious religious natureof Latin crosses themselves; constructs a reasonable observer who ignores certainelements of the Memorial and reaches unreasonable conclusions; and confusesmaintenance of a highway median and monument in a state park with excessive religiousentanglement.39

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III.Because Appellants do not challenge the district courtas finding that theCommission has demonstrated a secular purpose for displaying and maintaining theMemorial (the first Lemon factor), I will discuss in turn the majorityas evaluation of thesecond and third Lemon factorsawhether the Memorial has the primary effect ofadvancing or inhibiting religion and whether the government is excessively entangledwith religion.A.Under Lemonas second factor, we must determine awhether a particular display,with religious content, would cause a reasonable observer to fairly understand it in itsparticular setting as impermissibly advancing or endorsing religion.a Lambeth, 407 F.3dat 271. This reasonable observer inquiry arequires the hypothetical construct of anobjective observer who knows all of the pertinent facts and circumstances surroundingthe [display] and its placement.a Salazar v. Buono, 559 U.S. 700, 721 (2010) (pluralityopinion).

displayas principal or primary effect is to advance or inhibit religion; or, put differently,whether an informed, reasonable observer would view the display as an endorsement ofreligion.a Lambeth, 407 F.3d at 272.40

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It is undeniable that the Latin cross is the apreeminent symbol of Christianity.aMaj. Op. at 18. But we must be careful not to afocus exclusively on the religiouscomponenta of a display, as that awould inevitably lead to its invalidation under theEstablishment Clause.a Lambeth, 407 F.3d at 271 (quoting Lynch v. Donnelly, 465 U.S.668, 680 (1984)). Indeed, the Supreme Court ahas consistently concluded that displayswith religious contentabut also with a legitimate secular useamay be permissible underthe Establishment Clause.a Id. (citing Cty. of Allegheny v. Am. Civil Liberties Union,492 U.S. 573, 579 (1989)). A reasonable observer would be aware that the cross is anotmerely a reaffirmation of Christian beliefs,a for it is aoften used to honor and respectthose whose heroic acts, noble contributions, and patient striving help secure an honoredplace in history for this Nation and its people.a Buono, 559 U.S. at 721.Despite the religious nature of the Latin cross, a reasonable observer must alsoadequately consider the Memorialas physical setting, history, and usage. The Memorialwas created to commemorate the forty-nine soldiers who lost their lives in World War I,as explicitly stated on the plaque attached to its base.

See J.A. 1891 (aTHIS

MEMORIAL CROSS DEDICATED TO THE HEROES OF PRINCE GEORGEaSCOUNTY MARYLAND WHO LOST THEIR LIVES IN THE GREAT WAR FOR THELIBERTY OF THE WORLD.a). The plaque also includes a quotation from PresidentWoodrow Wilson stating, aThe right is more precious than peace. We shall fight for thethings we have always carried nearest our hearts. To such a task we dedicate our lives.aId. Each face of the cross includes the American Legion seal and each face of the base isinscribed with one of four words: aVALOR,a aENDURANCE,a aCOURAGE,a and41

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aDEVOTION.a J.A. 1963. The Memorial has functioned as a war memorial for itsentire history, and it sits among other secular monuments in Veterans Memorial Park,though it is separated from the other monuments by intersecting highways.The majority concludes that the size of the Latin cross making up the Memorialoverwhelms these secular elements.

In the majorityas view, the Memorial is

unconstitutional based predominantly on the size of the cross, and neither its secularfeatures nor history could overcome the presumption. But such a conclusion is contraryto our constitutional directive. We must fairly weigh the appearance, context, and factualbackground of the challenged display when deciding the constitutional question. SeeLynch, 465 U.S. at 679a80; Cty. of Allegheny, 492 U.S. at 598a600.

Although a

reasonable observer would properly notice the Memorialas large size, she would also takeinto account the plaque, the American Legion symbol, the four-word inscription, itsninety-year history as a war memorial, and its presence within a vast state park dedicatedto veterans of other wars. Would the majorityas version of a reasonable observer besatisfied and better equipped to evaluate the Memorialas history and context if the crosswere smaller? Perhaps if it were the same size as the other monuments in the park?Though Establishment Clause cases require a fact-intensive analysis, we must bear inmind our responsibility to provide the government and public with notice of actions thatviolate the Constitution. What guiding principle can be gleaned from the majorityasfocus on the crossas size? Understandably, the majorityas decision would lead to per sefindings that all large crosses are unconstitutional despite any amount of secular historyand context, in contravention of Establishment Clause jurisprudence.42

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The majority also makes much of the Memorialas isolation from the othermonuments in Veterans Memorial Park, as it sits in the median of a now busy highway,making it difficult to access. But a reasonable observer would note that the Memorialwas placed there as part of the concurrent creation of the National Defense Highway tocommemorate the soldiers of World War I, not as a means of endorsing religion. And,though Veterans Memorial Park does not include any other religious symbols asmemorials, there is no evidence that the state formally foreclosed the possibility oferecting any other religious symbol. Also, the reasonable observer would note that theMemorialas physical setting does not lend itself to any religious worship. Van Orden,545 U.S. at 702 (stating that religious displayas location in large park containing othermonuments suggested alittle or nothing sacred,a as it illustrated residentsa historicalideals and adid not readily lend itself to meditation or any other religious activitya).Additionally, due to the Memorialas location, the majority explains that areasonable observer would not be able to easily examine the Memorialas secularelements. Maj. Op. at 23. This is because the Memorial ais located in a high-traffic areaand passers-by would likely be unable to read the plaque,a which is small and badlyweathered. Id. at 23. However, the reasonable observeras knowledge is not alimited tothe information gleaned simply from viewing the challenged display.a Pinette, 515 U.S.at 780a81 (OaConnor, J., concurring). That the average person in the community mayhave difficulty viewing all of the secular elements of the Memorial while stuck in trafficor driving at high speeds is of no consequence, for the reasonable observer ais not to beidentified with any ordinary individual, . . . but is rather a personification of a community43

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ideal of reasonable behaviora who is adeemed aware of the history and context of thecommunity and forum in which the religious display appears.a Id. at 779a80 (internalquotation marks and citations omitted).

Thus, the reasonable observeras ability to

consider these secular elements is by no means diminished.Further, quoting Trunk v. City of San Diego, 629 F.3d 1099, 1116 n.18 (9th Cir.2011), the majority states that the large size and isolation of the Memorial aevokes amessage of aggrandizement and universalization of religion, and not the message ofindividual memorialization and remembrance that is presented by a field of gravestones.aMaj. Op. at 22. In Trunk, the Ninth Circuit considered a forty-three-foot free-standingcross and veterans memorial erected in a state park. 629 F.3d at 1101. The courtevaluated the history of the Latin cross generally, its use as a war memorial, the history ofthe particular war memorial at issue, and its physical setting. Id. at 1102a05, 1110a24.The cross in Trunk had no secular elements; instead, it was unadorned and without anyphysical indication that it was a war memorial until after litigation was initiated toremove it. Id. at 1101a02; see also Smith v. Cty. of Albemarle, 895 F.2d 953, 958 (4thCir. 1990) (concluding that crA"che, unassociated with any secular symbols, prominentlydisplayed in front of government building, and unaccompanied by any other religious ornonreligious displays, conveyed message of governmental endorsement of religion). Thecourt concluded that a reasonable observer would perceive the presence of the cross asthe federal governmentas endorsement of Christianity, due in part to its long history ofserving as a site of religious observance, with no indication of any secular purpose foralmost three decades. Id. at 1125.44

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But here, the Memorial has always served as a war memorial, has been adornedwith secular elements for its entire history, and sits among other memorials in VeteransMemorial Park.

The Memorialas predominant use has been for Veterans Day and

Memorial Day celebrations, although three religious services were conducted at theMemorial nearly ninety years ago. Also, the invocations and benedictions performed atthe annual veterans celebrations are not enough to cause a reasonable observer toperceive the Memorial as an endorsement of Christianity in light of its overwhelminglysecular history and context.

Further, guidance from Van Orden provides that the

Memorialas ninety-year existence and fifty-year government ownership without litigationis a strong indication that the reasonable observer perceived its secular message. See 545U.S. at 702a03 (stating that challenged monumentas presence on government property forforty years provided determinative factor that it conveyed predominately secularmessage). The Memorial stands at a busy intersection, yet this case is the first time theMemorial has been challenged as unconstitutional. Those fifty years strongly suggestathat few individuals, whatever their system of beliefs, are likely to have understood the[Memorial] as amounting, in any significantly detrimental way, to a government effort. . . primarily to promote religion over nonreligion,a or to aengage in,a acompel,a or deterany religious practice or beliefs.

Id. at 702 (quoting Schempp, 374 U.S. at 305

(Goldberg, J., concurring)); see also Buono, 559 U.S. at 716 (aTime also has played itsrole. [After] nearly seven decades[,] . . . the cross and the cause it commemorated hadbecome entwined in the public consciousness.a). This significant passage of time must

45

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factor into the Courtas analysis and ahelp[] us understand that as a practical matter ofdegree [the Memorial] is unlikely to prove divisive.a Van Orden, 545 U.S. at 702.With the foregoing facts, circumstances, and principles in mind, I conclude that areasonable observer would understand that the Memorial, while displaying a religioussymbol, is a war memorial built to celebrate the forty-nine Prince Georgeas Countyresidents who gave their lives in battle. Such an observer would not understand the effectof the Commissionas display of the Memorialawith such a commemorative past and setamong other memorials in a large state parkato be a divisive message promotingChristianity over any other religion or nonreligion. A cross near a busy intersectionaneed not be taken as a statement of governmental support for sectarian beliefs. TheConstitution does not oblige government to avoid any public acknowledgment ofreligionas role in society. Rather, it leaves room to accommodate divergent values withina constitutionally permissible framework.a

Buono, 559 U.S. at 718a19 (citations

omitted). We must be careful not to push the Establishment Clause beyond its purpose insearch of complete neutrality. a[U]ntutored devotion to the concept of neutrality can leadto invocation or approval of results which partake not simply of that noninterference andnoninvolvement with the religious which the Constitution commands,a but of extremecommitment to the secular, aor even active, hostility to the religious.a Van Orden, 545U.S. at 699 (quoting Schempp, 374 U.S. at 306 (Goldberg, J., concurring)). Finding thata reasonable observer would perceive the Memorial as an endorsement of Christianitywould require that we pursue a level of neutrality beyond our constitutional mandate. Itherefore conclude that the Memorial does not violate the second factor of the Lemon test.46

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B.The Lemon testas final factor asks whether the challenged display has created anaexcessive entanglementa between government and religion. Lambeth, 407 F.3d at 272a73. aThe kind of excessive entanglement of government and religion precluded byLemon is characterized by acomprehensive, discriminating, and continuing statesurveillance.aa Id. at 273 (quoting Lemon, 403 U.S. at 619). This inquiry is one of akindand degree,a Lynch, 465 U.S. at 684, aand because some interaction between church andstate is inevitable, the Supreme Court has reaffirmed that the a[e]ntanglement must beaexcessivea before it runs afoul of the Establishment Clause,aa Koenick v. Felton, 190F.3d 259, 268 (4th Cir. 1999) (quoting Agostini v. Felton, 521 U.S. 203, 233 (1997)).The majority concludes that the Memorial fosters excessive entanglement becauseof the Commissionas ownership and maintenance of the Memorial.

But the

Commissionas maintenance of the Memorial and the land surrounding it could hardly beconsidered the sort of state surveillance that Lemon intends to prohibit. See Lemon, 403U.S. at 615a20 (concluding that challenged action excessively entangled state withreligion by requiring state to supplement salaries for teachers in parochial schools); seealso Mellen, 327 F.3d at 375 (determining that public universityas supper prayer violatedLemonas third prong because school officials acomposed, mandated, and monitored adaily prayera). Rather, the Commission is merely maintaining a monument within a statepark and a median in between intersecting highways that must be well lit for public safetyreasons.

There is no evidence that the Commission consults with any churches or

religious organizations to determine who may access the Memorial for events. Nor is47

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there evidence that the Commission is required to be involved in any church-relatedactivities to maintain the Memorial.Further, the majority observes that aany use of public funds to promote religiousdoctrines violates the Establishment Clause.a Bowen v. Kendrick, 487 U.S. 589, 623(1988) (OaConnor, J., concurring). But, in Agostini, the Supreme Court held that afederally funded program that paid public school teachers to teach disadvantaged childrenin parochial schools did not cause an excessive entanglement between church and state.521 U.S. at 234a35. Likewise, the Commissionas use of $122,000 over the course offifty-plus years for lighting and upkeep is not a promotion of any religious doctrine, asthe Memorial is a historical monument honoring veterans.I therefore conclude that the Memorial does not violate the third factor of theLemon test.*

*

*

This Memorial stands in witness to the VALOR, ENDURANCE, COURAGE, andDEVOTION of the forty-nine residents of Prince Georgeas County, Maryland awho losttheir lives in the Great War for the liberty of the world.a I cannot agree that a monumentso conceived and dedicated and that bears such witness violates the letter or spirit of thevery Constitution these heroes died to defend. Accordingly, I would affirm the districtcourtas judgment.